Sardar Shahid Ahmed Khan vs Farzeen Irtizaz& another
This criminal miscellaneous petition was filed seeking the cancellation of pre-arrest bail granted to the respondent in a case registered under Section 489-F of the Pakistan Penal Code 1860. The petitioner contended that the respondent was a habitual offender and had absconded, rendering the bail order arbitrary. The core legal question was whether the circumstances warranted the cancellation of the pre-arrest bail. The Islamabad High Court dismissed the petition, holding that the impugned order was just and proper. The Court observed that the offence under Section 489-F of the Pakistan Penal Code 1860 carries a punishment of up to three years and does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, where bail is the rule and refusal is the exception. The Court reiterated the principle that cancellation of bail requires strong, exceptional grounds, such as misuse of bail, interference with evidence, or fresh material, none of which were established by the petitioner. The Court further noted that allegations of absconsion should be addressed to the trial court.
- What are the essential grounds required for the cancellation of bail?
- Does the offence under Section 489-F of the Pakistan Penal Code 1860 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is the grant of bail the rule and refusal the exception for offences not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 489-F, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Through the instant criminal misc., petitioner prays for cancellation of pre-arrest bail granted to respondent No.1 (Mst. Fareen Irtizaz) vide order dated 06.09.2021, passed by the learned Additional Sessions Judge-I, Islamabad- East in FIR No. 300, dated 19.09.2019 under section 489-F PPC, Police Station Lohi Bhair , Islamabad.
2. Precisely , relevant facts are that initially on the same allegations, petitioner got registered FIR No.110, dated 02.04.2019 under Section 489-F PPC against the respondent No.1 at Police station Kohsar , Islamabad. The latter filed application for pre-arrest bail which was disposed of by the then learned Sessions Judge, Islamabad (West) vide order dated 30.07.2019 by observin g that "FIR of P.S Kohsar after canceling the offence from said police station may be transferred to P .S. Lohi Bher ."
3. After the registration of FIR at Police Station Lohi Bher, Islamabad, respondent No.1 applied for pre-arrest bail which was allowed by the learned Additional Sessions Judge-I, Islamabad-East vide order dated 06.09.2021.
Hence, instant petition.
4. Learned counsel argued that the impugned order is arbitrary and against the law and facts; that respondent No.1 is a habitual of fender and since absconded, therefore, impugned order is liable to be set aside.
5. Heard, record examined.
6. It is settled principle that for cancellation of bail strong and exceptional grounds are required besides to show that the bail granting order is erroneous, accused has misused the concession of bail, tried to hamper prosecution evidence, likelihood of absconsion, attempted to interfere with investigation and that some fresh facts and material has been collected during investigation. Reliance is placed upon case of "Samiuallah & another v. Laiq Zada & another" (2020 SCMR 1115) followed in criminal petition NO. 1459 /2020, 1523/2020, 970 to 976/2021 and Criminal Petition No. 1 145-L/2020.
7. Record reveals that the punishment provided for the offence under section 489-F PPC is up to three years which does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C, wherein grant of bail is a rule and refusal is an exception.
8. The learned Court of first instance on tentative assessment of the material collected by the prosecution, inter alia, observed that: "Petitioner 's version was that the cheque in question was issued in year 2016 and in lieu of the said cheque another cheque had been issued to complainant. On the basis of which cheque the petitioner was entangled in a criminal case vide separate FIR. After full fledge trial, the complainant failed to establish his version and the petitioner was acquitted from the Trial Court. The stamp papers relied upon by the complainant in both the cases, one filed earlier and the present case bears same number endorsed at the back of stamp papers. The entry in the register of stamp vender against the number 3855 tilts the matter towards further probe and investigation.
Petitioner had highlighted certain occasions when payments had been made to complainant through banks transaction or given money in hand etc."
9. The reasons prevailed with ibid for extending extra ordinary concession of pre-arrest bail cannot be termed as arbitrary or perverse.
10. So far as the ground that the respondent No.1 is keeping herself away from the process or misused the concession of bail, proper course for the petitioner would be to move the Court, seized with the trial of the subject case.
11. The learned counsel for the petitioner remained unable to advance any exceptional ground which could be made basis to upset the impugned order which, in the attending circumstances of the case, appears to be just and proper . Consequently , the instant Crl. Misc. is dismissed accordingly .